Officer in subway shooting has resignedStory Highlights

(CNN) -- The officer involved in a New Year's Day shooting that left a passenger dead in a crowded Oakland, California, subway station resigned Wednesday, a Bay Area Rapid Transit spokesman said.


Oscar Grant, 22, was killed January 1 in a shooting at a subway station in California's Bay Area.

BART spokesman Linton Johnson said in a statement that the officer's attorney and his union representative submitted the resignation at a meeting Wednesday morning with BART police investigators. The officer was going to be at the meeting but did not show up, Johnson said.

The resignation was effective immediately.

Shortly before the funeral for the passenger, 22-year-old Oscar Grant, Johnson said the officer had received death threats.

The BART officer fatally shot Grant in the back after he and some friends were pulled from a train car following a report of an altercation, according to a BART statement.

On Tuesday, attorney John Burris filed a $25 million claim with BART in which he identified the officer as Johannes Mehserle. Several local media outlets had already identified the officer.

Burris alleges in the claim, "Without so much as flinching the Officer Mehserle stood over Grant and mercilessly fired his weapon, mortally wounding Mr. Grant with a single gunshot wound to the back." Watch the events preceding the shooting »

Johnson said Mehserle's attorney -- reportedly David E. Mastagni of Sacramento -- has advised him not to speak to investigators. Nor has Mehserle made any public statements. Calls and e-mails to Mastagni's office Tuesday and Wednesday were not returned.

Johnson also said the officer had been moved at least twice because of death threats to him and his family.

CNN affiliate KTVU-TV in Oakland obtained videos of the incident and its prelude. One video, which KTVU reported came from a train passenger who wished not to be identified, shows three young men against a wall in the Fruitvale station.

Burris told CNN on Tuesday that the young men had been celebrating the new year at a popular waterfront tourist spot, The Embarcadero. They were heading home when police pulled them from the train car about 2 a.m.

Some of the young men were handcuffed, but not 22-year-old Oscar Grant. The video from the anonymous passenger shows Grant seated on the floor with his back against the wall.

Grant holds up his hands, appearing to plead with police. Burris said Tuesday that Grant was asking police not to use a Taser.

"He said to them, 'Don't Tase me; I have a 4-year-old daughter,' " Burris said.

The interaction on the video is not audible.

Seconds later, police put Grant face-down on the ground. Grant appears to struggle. One of the officers kneels on Grant as another officer stands, tugs at his gun, unholsters it and fires a shot into Grant's back.

Burris said the bullet went through Grant's back and then ricocheted off the floor and through his lungs.

Grant died seven hours later at a hospital, KTVU reported.

In Wednesday's statement about Mehserle's resignation, BART General Manager Dorothy Dugger said that the "shooting is a tragic event in every respect for all involved."

"We recognize that the family and friends of Oscar Grant are in mourning, and we extend our condolences," she said.

Johnson has said Mehserle is devastated and is presumed innocent. He also says that the videos making the media rounds are inconclusive and that there is more to the story than what can be seen on the grainy images.

There are two surveillance cameras at the Fruitvale station, but a BART official told CNN on Tuesday that no video is being released at this time.

Burris called the shooting "unconscionable" and said the $25 million claim alleges wrongful death and violation of civil rights by use of excessive force. Read the claim (PDF)

BART has 45 days to respond, he said. If the authority rejects the claim, he will file a civil lawsuit, said Burris, who served as Rodney King's co-counsel in King's civil case against the Los Angeles Police Department in the 1990s.

Burris has spoken to witnesses who claim that Grant was trying to resolve the situation.

"He had been telling people to calm down. 'Be cool. Just do what they tell you to do,' " the attorney said.

Johnson told KTVU that authorities are trying to determine whether the officer who shot Grant accidentally drew his gun instead of his Taser.

Burris said he is pushing Alameda County District Attorney Tom Orloff to press second-degree murder charges, or involuntary manslaughter charges if evidence suggests that Mehserle mistook his gun for a Taser, he said.

"No one wants to believe a cop would just kill somebody like that," he said. "My view is, this is criminal conduct, period."

Orloff said Wednesday that his investigation will focus primarily on what led to the shooting.

Some homicides are lawful, he noted. In this case, Orloff said, "the part that needs dissecting is what, if anything, can be determined about the mental state of the actor," meaning the officer.

There are many possibilities, he said: His office could find no basis for criminal charges; the office could file involuntary manslaughter charges if Mehserle exercised gross negligence, voluntary manslaughter if Mehserle reasonably believed that he was acting in self-defense or murder if Mehserle acted with malice and forethought.

"Our function is to determine whether or not criminal charges should be filed against the officer," he said. "These things are usually an issue of weeks rather than days."

BART Police Chief Gary Gee released a statement this week expressing condolences for Grant's family and saying the authority is cooperating with Orloff's office.

Gee added that BART will complete an "unbiased and thorough investigation" and asked the public to be patient.

In the statement, Johnson said the officer's attorney had postponed a meeting with investigators Monday and on Tuesday asked for a delay until next week. That request was denied, and the Wednesday meeting was scheduled.

Johnson told CNN on Wednesday that it could take weeks for BART to complete its investigation.


"As frustrating as it is, I want to stress that we cannot and will not jeopardize this case by discussing details before the investigation is complete," Gee said.

BART said in a statement Sunday that the officer had been on the force two years. He had on administrative leave, which is standard procedure, according to BART.

Two thoughts:

1) We must work diligently to widen jury pools in this country. Too many times officers on trial are judged by juries of their peers (white officers, all white juries), and sentenced to hand slaps for the murder of young Black men.

Too many times Black men and women are systematically excluded from juries. It will change when we rectify that systematic exclusion and begin handing out sentences to murderous policemen that fit their crimes.

2) The City of Oakland has tolerated racist officers for a very long time. The Oakland Police Department was a strong mitigating factor in the birth of the Black Panthers back in the mid 1960's. The Panthers began as a group that basically policed the police in Oakland. They were like the orginal Neighborhood Watch, except they watched the Oakland Police to make sure they weren't violating the rights of Black citizens. And here they are 40 odd years later still doing the same thing, in spite of all the celebrity preachers, Black politicians, and so many other good citizens who seem to choose to turn away from the problem instead of addressing it.

In the pass month there has been a rash of this occurance in the same general locations...Richmond, CA...neighbor to Oakland...Black on Black crime...we had seven (7) killings in a three (3) day period...As a Black woman and mother I have cried over these deaths but now I look for my part in helping to save a life...we are working to set up a mentoring program for young women and young men in our community...If we Blacks don't take responsibility for our children who can we expect to do it - this isn't a THEIR problem this is OURS

What happens in our communities is the "result". True enough, far too often it is us doing it to "us". But like I said it is the result of something... the effect.

Treating the result is not as effective as determining and treating the "cause". There are no Black manufacturers of guns (or weapons of any sort that I know of). I have never seen a Black lobbyist for the anti-gun control crowd.

We aren't making the laws, the policies, the stereotypes, the economic conditions, the bleak alternatives, or none of that shit. "They" are.

I don't condone the rampant violence we visit upon ourselves. I condemn the rampant violence visited upon us by those who abuse their authority. But I caution every concerned individual to make sure that they examine "cause and effect" prior to reaching their conclusions.

Let's eradicate the disease and all it's known carriers. Treating the symptoms will never be enough. We've got to stamp out ignorance. Stamp out racism. Stamp out elitist philosophies. Stamp out separatism. We got to address the apartheid policies that still exist in this country.